Subject matter: Subsidies for public and private education establishments

Procedural issues: Compatibility of communication with CovenantExamination
of "same matter" by European Commission on Human Rights-Accelerated procedure
under article 4 (2)

Substantive issues: Discrimination based on "other status"-Denial of award
of education subsidies for private schools-Unreasonable differentiationRetroactive
award of education subsidy-"Effective remedy" within the meaning of article 2 (3)
(a)

Articles
of the Covenant: 2 (3) and 26

Articles of the Optional Protocol: 3 and S (2)
(a) and
(b)

1. The author of the communication (initial letter dated 5 July 1985 and further
letters dated 24 February 1986 and 19 January 1988) is Carl Henrik Blom, a Swedish
citizen, born in 1964. He is represented by legal counsel. He claims to be a
victim of violations by the Swedish authorities of article 2, paragraph 3, and
article 26 of the International Covenant on Civil and Political Rights in conjunction
with article 3, paragraph (c) and article 5, paragraph (b),
of the UNESCO Convention against Discrimination in Education of 1960. Article
13 of the International Covenant on Economic, Social and Cultural Rights is
also invoked.

2.1. During the school year 1981/82, the author attended grade 10 at the Rudolf
Steiner School in Goteborg, which is a private school. According to Decree No.
418 on Study Aid, issued by the Swedish Government in 1973, a pupil of an independent
private school can only be entitled to public assistance if he attends a programme
of courses which is placed under State supervision by virtue of a governmental
decision under the Ordinance. The governmental decision is taken after consultation
with the National Board of Education and the local school authorities.

2.2. The author states that the Rudolf Steiner School submitted an application
on 15 October 1981 to be placed under State supervision with respect to grade
10 and above (the lower grades were already in that category). After the local
school authorities and the National Board gave a favourable opinion, the decision
to place grade 10 and above under State supervision was taken on 17 June 1982,
effective as of 1 July 1982, that is for the school year 1982/83 onwards, and
not from autumn 1981, as the school had requested.

2.3. On 6 June 1984, the author applied for public financial aid in the amount
of SKr 2,250, in respect of the school year 1981 /82. By a decision of 5 November
1984, his application was rejected by the National Board for Educational Assistance
on the grounds that the school had not been under State supervision during the
school year in question. The author alleges that this decision was in violation
of the provisions of the international treaties invoked by him. He states that
an appeal against the decision "was not allowed". Believing, however, that the
decision of the National Board for Educational Assistance violated his rights
under the 1960 UNESCO Convention, the author submitted, at the beginning of
1985, a claim for compensation to the Chancellor of Justice (Justiekanslern).
By a decision of 14 February 1985 the Chancellor of Justice declared that the
decision of the National Board for Educational Assistance was in accordance
with domestic law in force and could not give rise to State liability. It was
also pointed out that the Decree on Study Aid was a governmental decision, in
respect of which an action for compensation could not be permitted under the
relevant provisions of the Damages Act. The Chancellor finally mentioned that
Mr. Blom would be free to pursue the matter before the courts. The Chancellor
pointed out, however, that the courts would be duty bound, ex officio,
to apply Swedish law, including the relevant provisions of the Damages Act to
which he had referred.

2.4. From the decision of the Chancellor of Justice, the author draws the conclusion
that it would be of no avail to initiate court proceedings against the State.
Consequently, he maintains, there are no further domesticremedies to
exhaust. This situation, he claims, constitutes, in itself, a violation of article
2, paragraph 3, of the Covenant.

2.5. The author's allegation, that the decision not to grant him public assistance
was in violation of article 26 of the Covenant, is based on the argument that
he was subjected to discrimination as a pupil of a private school. Pupils of
public schools are said to have received public assistance for the school year
1981/82. This discriminatory treatment allegedly contravenes the basic idea
of equality for all in education and it also allegedly interferes with the parents'
right to choose independent private schools provided for in article 13 of the
International Covenant on Economic, Social and Cultural Rights and article 5,
paragraph 1 (b), of the UNESCO Convention against Discrimination in Education
of 1960 to which Sweden is a State party. The author also claims to be a victim
of a violation of article 3 (c) of that same Convention.

2.6. The author requests the Committee to condemn the alleged violations of
article 2, paragraph 3, and article 26 of the Covenant, to invite the State
party to take the necessary steps to give effect to its obligations under article
2, paragraph 3, and to urge the State party to discontinue the alleged discriminatory
practices based on the 1973 Study Aid Act. Furthermore, he asks the Committee
to urge the Swedish Government to pay him and his class-mates the amount of
public assistance due for the school year 1981 /82 with accrued interest according
to Swedish law as well as his expenses for legal advice.

3. By its decision of 15 October 1985, the Working Group of the Human Rights
Committee transmitted the communication under rule 91 of the provisional rules
of procedure to the State party concerned, requesting information and observations
relevant to the question of the admissibility of the communication. The Working
Group also requested the State party to explain, in so far as such explanation
might be relevant to the question of admissibility, why grade 10 of the Rudolf
Steiner School in Goteborg was placed under State supervision only as of 1 July
1982 but not for the preceding school year, as requested.

4.1. In its submission dated 8 January 1986, the State party indicates that
the 1962 Act on Schools recognizes the existence of private schools independent
of the public sector school system. The private schools are, in principle, financially
self-sufficient, and there is no legal obligation for the State or local government
to provide any financial contribution. However, there are no legal impediments
excluding various forms of public support, and in practice most of the private
schools are in one way or another supported by local government and, in addition,
approximately half of them, including the Rudolf Steiner School, receive State
contributions.

4.2. The State party indicates further that, in accordance with regulations
set forth in the 1973 Act on Study Aid (studiestodslag
1973:349) and the 1973 Decree on Study Aid (studiestodskungorelse
1973:418), pupils
attending schools, whether public or private, may be eligible for various forms
of public financial support. As far as is relevant for the consideration of
the present
case, chapter 1, section 1, of the Decree provides that financial support may
be granted to pupils attending public schools or schools subject toState
supervision. Consequently, for pupils attending a private school to be eligible
for public financial support, the school has to be placed under State supervision.
Decision on such supervision is taken by the Government upon application submitted
by the school. In the present case, the Rudolf Steiner School applied in October
1981 to have the part of its educational programme corresponding to the gymnasium,
that is grades 10 to 12, placed under State supervision. Education on this higher
level had not previously been offered by the school. After having considered
the application, as well as observations on the application submitted by the
Municipal School Administration, the Education Committee of the County of Goteborg
and Bohus, and the National Board of Education, the Government on 17 June 1982
granted the application as of 1 July 1982.

4.3. On 5 November 1984, the National Board for Educational Assistance informed
the author that financial support for his studies could not be granted on the
ground that the school was not at that time subject to State supervision with
respect to the educational programme of grade 10.

5.1. As to the alleged violations of the International Covenant on Civil and
Political Rights, the State party submits the following:

Blom contends that the refusal to grant him public financial support for the
school year 1981/82 amounts to a violation of article 26. In the Government's
view, however, the notion of discrimination implies a comparison between two
or more different groups or categories of individuals and a finding, first,
that one group or category is being treated differently from another group or
category and, secondly, that this different treatment is based on arbitrary
and unjustified grounds, such as those enumerated in article 26. Accordingly,
different treatment does not constitute discrimination when the distinction
is based on objective and reasonable criteria. There is no obligation under
article 26, or under any other provision of the Covenant, to provide public
financial support to pupils. Therefore, the State is at liberty to decide whether
to give such support and, if financial support is provided, to set the conditions
under which it should be granted, provided only that the State's considerations
are not based on unjustified grounds, such as those enumerated in article 26.

5.2. The State
party further argues that:

As regards schools, like any other institution or activity in society, it is
naturally legitimate for the State, before granting public financial support
to the school or its pupils, to consider whether the school meets reasonable
standards of quality and whether it fulfils a need of society or the presumptive
pupils. It is equally justified if financial support is provided, that the State
take the necessary measures in order to assure itself that the facts and circumstances
underlying the decision are not subsequently changed. These are-and on this
point no other view has been expressed by Blom-the motives for the requirement
that a private school be Statesupervised in order for its pupils to be eligible
for public financial support. The Government submits that this does not constitute
discrimination within the meaning of article 26.

5.3. The State
party adds:

In view of the aforesaid, and for the following reasons, the Government further
maintains that Blom's communication as regards this point should be declared
inadmissible in accordance with the provisions of article 3 of the Optional
Protocol. Blom contends, as the sole "discriminatory basis" for the alleged
violation of article 26, that he chose to attend the Rudolf Steiner School because
of his, and his parents', "religion, political or other opinion", and that the
different treatment regarding public financial support was a direct result of
this choice. in the opinion of the Government, this obviously does not amount
to saying that the State's policy of different treatment of public and private
schools is based on such grounds as religion or

________________________________

sion
within six months of
the transmittal to it of the decision on admissibility, the author of the communication
wouldbe given the opportunity to comment thereon. If no futher submissions
were received from the State party under article 4, paragraph 2, of the Optional
Protocol, the Committee would proceed to adopt its final views in the light
of the written information already submitted by the parties.

8. On 9 April 1987, the Committee therefore decided that the communication was
admissible in so far as it related to alleged violations of the International
Covenant on Civil and Political Rights and requested the State party, should
it not intend to make a further submission in the case under article 4, paragraph
2, of the Optional Protocol, so to inform the Committee, so as to permit an
early decision on the merits.

9. The State party, on 23 October 1987, and the author, on 19 January 1988,
informed the Committee that they were prepared to let the Committee consider
the case on the merits as it then stood.

10.1. The Human Rights Committee has considered the merits of the communication
in the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol. The facts of the
case are not in dispute.

10.2. The main issue before the Committee is whether the author of the communication
is a victim of a violation of article 26 of the Covenant because of the alleged
incompatibility of the Swedish regulations on education allowances with that
provision. In deciding whether or not the State party violated article 26 by
refusing to grant the author, as a pupil of a private school, an education allowance
for the school year 1981/82, whereas pupils of public schools were entitled
to education allowances for that period, the Committee bases its findings on
the following observation.

10.3. The State party's educational system provides for both private and public
education. The State party cannot be deemed to act in a discriminatory fashion
if it does
not provide the
same level of subsidy for the twotypes of establishment, when the private
system is not subject to State supervision. As to the author's claim that the
failure of the State party to grant an education allowance for the school year
1981/82 constituted discriminatory treatment, because the State party did not
apply retroactively its decision of 17 June 1982 to place grades 10 and above
under State supervision, the Committee notes that the granting of an allowance
depended on actual exercise of State supervision since State supervision could
not be exercised prior to 1 July 1982 (see para. 2.2 above), the Committee finds
that consequently it could not be expected that the State party would grant
an allowance for any prior period and that the question of discrimination does
not arise. On the other hand, the question does arise whether the processing
of the application of the Rudolf Steiner School to be placed under State supervision
was unduly prolonged and whether this violated any of the author's rights under
the Covenant. In this connection, the Committee notes that the evaluation of
a school's curricula necessarily entails a certain period of time, as a result
of a host of factors and imponderables, including the necessity of seeking advice
from various governmental agencies. In the instant case the school's application
was made in October 1981 and the decision was rendered eight months later, in
June 1982. This lapse of time cannot be deemed to be discriminatory, as such.
Nor has the author claimed that this lapse of time was attributable to discrimination.

11. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political Rights,
is of the view that the facts as submitted do not sustain the author's claim
that he is a victim of a violation of article 26 of the International Covenant
on Civil and Political Rights. In the light of the above, the Committee does
not have to make a finding in respect of the author's claim of a violation of
article 2, paragraph 3, of the Covenant.